Piccolo v. Muroff, 2003 CanLII 57442 (ON CA)

DATE: 20030930
DOCKET: C39381

COURT OF APPEAL FOR ONTARIO

RE:

SAM PICCOLO and SUSAN PICCOLO (Appellants) - and - WALTER MUROFF, WALTER MUROFF AND COMPANY TD., MARC KATZMAN and GERALD KOSKI (Respondents)

BEFORE:

LASKIN, FELDMAN and ARMSTRONG JJ.A.

COUNSEL:

Sam Piccolo and Susan Piccolo, appellants appearing in person

Arthur M. Barat, for the respondents

HEARD:

September 12, 2003

On appeal from a judgment of Justice Terrence L. J. Patterson of the Superior Court of Justice dated December 10, 2002.

ENDORSEMENT

1Mrs. Piccolo advances three main submissions on behalf of her husband and herself:

1. The motions judge erred in failing to find that the appellants' affidavit material raised a triable issue about whether the respondent Muroff breached a fiduciary duty to Mr. and Mrs. Piccolo;

2. The motions judge erred in granting summary judgment in the face of genuine credibility issues requiring a trial; and

3. The motions judge should not have granted summary judgment because the respondent refused to give the appellants his file on their mortgage transactions.

We decline to give effect to any of these grounds of appeal.

2On the first submission, the appellants' allegations of breach of fiduciary duty are conclusory at best. Even accepting that the respondent Muroff had a fiduciary duty to the appellants, they have put forward no material facts to show that the respondent breached his duty or that any acts or omissions by him caused the appellants' damages.

3The undeniable fact is that the appellants did not have the financial means to maintain the property. They defaulted on each of the three mortgages, they could not pay the municipal taxes and they could not find a buyer. The sale to LeBlanc did not close apparently because of the purchaser's inability to pay the purchase price. Nothing in the record suggests that Mr. Muroff prevented the sale from taking place.

4On the appellants' second submission, we see no credibility issues that need to be resolved by a trial. The motions judge was entitled to take a hard look at the record and his conclusion that the material did not raise a genuine triable issue seems to us unassailable.

5On the appellants' third submission, we note that they had a lawyer at the time who did not request the file from the respondent; that six days before the motion, the respondent's solicitor offered to make the file available for inspection and copying but the appellants declined to take up the offer; and that the appellants have not shown any prejudice from not having the file.

6For these brief reasons the appeal is dismissed. The respondent is entitled to his costs of the appeal on a partial indemnity basis, which we fix at $4,000 plus disbursements and GST.